ALI MUSTAFFA ABDUL RAHMAN MOOSA versus STATE OF KERALA

Citation: [1994] SUPP. 4 S.C.R. 52 · Decided: 28-09-1994 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
ALI MUSTAFFA ABDUL RAHMAN MOOSA 
v. 
STATE OF KERALA 
SEPTEMBER 28, 1994 
B 
(DR. AS. ANAND AND FAIZANUDDIN, JJ.] 
Narcotic Drngs and Psychotropic Substances Act, 1985 : 
Section 5(}--Search and seizure-In the presence of a Gazetted Officer 
C or a Magistrate-Option to the accused-Held : Mandatory and non-com-
pliance of the same would vitiate the conviction. 
The appellant was found in possession of 780 grams of cbaras. He 
was convicted under S.20(b)(ii) of the Narcotic Drugs and Psychotropic 
Substances Act, 1985 and sentenced to 11 years rigorous imprisonment 
D and a fine of Rs. 1 lakh, by the Sessions Judge. On appeal the High Court 
reduced the sentence to 10 years R.I. but maintained the fine. Hence this 
appeal. 
The main contention on behalf of the appellant was that the 
provisions ofS.50 of the Act being mandatory, the violation thereof vitiates 
E the conviction and sentence and so the same could not be sustained. 
F 
The respondent argued that the question of giving option to the 
accused in compliance with S.50 of the Act, is subject to the condition that 
the accused required that he be searched in the presence of a gazetted 
officer or a magistrate but where the accused did not so require for 
whatever reason, his conviction would not stand vitiated; and that even if 
the search and seizure was illegal, it would not still affect the conviction 
because_ the seized articles could be used as evidence of unlawful posses-
sion of a contraband. 
G 
Allowing the appeal, this Court 
HELD : 1. On account of the non-compliance with the provisions of 
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 
which provisions are mandatory, the conviction and sentence of the appel-
lant cannot be sustained. Undoubtedly, before the search of the appellant 
H was made, he was not given any option as to whether he desired to be 
52 
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AR.MOOSAv. STATEOFKERALA[DR.ANAND,J.] 
53 
searched in the presence of a gazetted officer or a Magistrate as envisaged A 
by Section SO. [S4-H, SS·B] 
State of Punjab v. Balbir Singh, [1994] 3 SCC, 299, relied on. 
2. 'Unlamul possession" of the contraband is the sine qua non for 
conviction under the Act and that factor has to be established by the B 
prosecution beyond a reasonable doubt. Indeed the seized contraband is 
evidence but in the absence of proof of possession of the same, an accused 
cannot be held guilty under the Act. [S6·H] 
Pooran Mal v. Director of Inspection, [1974] 1 SCC, 34S, distin· C 
guished. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
348 of 1991. 
From the Judgment and Order dated 10.4.90 of the Kerala High D 
Court in Crl. A. No. 414 of 1989. 
R.N. Joshi and Harjinder Singh for the Appellant. 
G. Vfshwanatha Iyer and M.T. George for the Respondent. 
The Judgment of the Conrt was delivered by 
DR. ANAND, J. The appellant, a Kuwaiti national, was convicted for 
an offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic. 
Substances Ac~ 1985 (hereinafter 'the NDPS Act') and sentenced to suffer 
imprisonment for 11 years and a fine of Rs. 1 lac by the learned Sessions 
Judge, Quilon. His appeal against the conviction failed before the High 
Court of Kerala though the sentence of imprisonment was reduced to 10 
years RI. The imposition of fine of Rs. 1 lac as also the imprisonment in 
default of the payment of fine as imposed by the Trial Court was, however, 
maintained. 
According to the prosecution case, on 12.10.1988 at about 11.15 p.m., 
E 
F 
G 
the appellant was found in possession of 780 gms. of charas in the first class 
waiting room of the railway station at Quilon. PW-6, Ashok Kumar, Sub-
Inspector of Police attached to the Quilon railway station, on receipt of 
reliable information that a foreigner having charas in his possession was H 
54 
SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R. 
A 
sitting at the Quilon railway station, went to the platform where PW-1 
Constable Nataraja Pillai was on patrol duty. Both PW-1 and PW-6 went 
to the first class waiting room. The appellant was found sitting there with 
a bag. On suspicion, he was questioned by PW-1 and PW- 6. The appellant 
took out a small packet of charas from his bag and handed it over to PW-6. 
B 
c 
On further questioning and search, PW-6 recovered three big packets of 
charas from the bag which was in possession of the appellant. The seizure 
of charas was effected in presence of the witnesses on the spot itself and 
the contraband was taken in
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